Appeals Court Rules Race Can Factor into College Admissions

In a 2-1 decision Tuesday, the U.S. 5th Circuit Court of Appeals ruled — for the second time — that the University of Texas at Austin can use race as an element of its admissions decisions for candidates not admitted via the state's Top Ten Percent Law.

The overwhelming majority of UT-Austin students are admitted through the state’s automatic admissions law, which is based entirely on class rank. But applicants who are not admitted because of their high school ranking are subjected to a holistic review, part of which allows the consideration of an applicant's race.

The majority opinion issued on Tuesday found that "universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity."

The university's use of race has been challenged by Abigail Fisher, a white woman who was denied admission in 2008 after undergoing such a review. She sued the university over its consideration of race and has pursued the claim after graduating from Louisiana State University and securing a job in Texas.

Fisher and her attorneys indicated that they intend to appeal Tuesday's ruling.

"It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer," Fisher said in a statement. "I remain committed to continuing this lawsuit, even if it means we appeal to the Supreme Court once again."

Edward Blum, director of the Project on Fair Representation, a legal defense foundation that has represented Fisher, said the ruling was not surprising based on the judges' questions and comments during the last hearing, which was in November. "This panel was proven wrong last year by the Supreme Court, and we believe it will be proven wrong once again on appeal," he said in a statement.

UT-Austin President Bill Powers issued a statement Tuesday saying he was pleased with the appeals court's decision. "This ruling ensures that our campus, our state and the entire nation will benefit from the exchange of ideas and thoughts that happens when students who are diverse in all regards come together in the classroom, at campus events and in all aspects of campus life,” he said.

In a statement of his own, University of Texas System Chancellor Francisco Cigarroa also welcomed the ruling. “The University of Texas System is committed to maintaining policies that sustain a diverse student population on UT campuses, and we respect and appreciate the careful deliberation on this matter,” he said.

In a news conference on the UT-Austin campus following the decision, Powers said the university was prepared to respond to an appeal from Fisher, though he also noted that the cost to the university to litigate the case over many years had already been "very substantial."

The appeals court had previously affirmed a district court's summary judgment siding with the university. But the U.S. Supreme Court remanded the case back to lower court in June 2013 on the grounds that the judges had not applied "strict scrutiny" and had been too inclined to take the university representatives at their word when they said the consideration of race was a necessary component of the review process that helped the institution meet its diversity goals.

The university argued that it is striving for — and has not yet attained — a “critical mass” of diversity. In his dissenting opinion, Judge Emilio Garza said he was not swayed by the university's argument because it "failed to define this term in any objective manner."

But the majority opinion, written by Judge Patrick Higginbotham, said that Fisher's attempts to quantify "critical mass" with a numerical goal "misses the mark."

He also noted that minority applicants do not have it easy under the university's holistic review process.

"The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top ten percent results in minority students being under-represented — and white students being over-represented — in holistic review admissions relative to the program's impact on each incoming class," he wrote.

In the way UT-Austin's admissions program is structured, he wrote, "its efforts in holistic review have not been simply to expand the numbers but rather the diversity of individual contributions."

Denying the university the ability to consider race in its evaluations of individuals' experience "would hobble the richness of the education experience," he concluded.

Disclosure: The University of Texas at Austin is a corporate sponsor of The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.

The future of affirmative action at public universities appeared in some doubt Wednesday as the Supreme Court justices debated for a second time whether to strike down a race-based admissions policy at the University of Texas.
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